Appellant was convicted of wilfully deserting his wife, his punishment being assessed at a fine of $250 and sixty days imprisonment in the county jail.
The Acts of the Thirty-third Legislature at page 189 uses this language with reference to wife desertion: "An offense under this Act shall be held to have been committed in the county in which such wife, child or children may have been at the time such abandonment occurred, or in the county in which such wife, child or children shall have resided for six months next preceding the filing of the complaint, information or indictment." *Page 203
The unquestioned and undisputed evidence shows that defendant and his wife were married in Panama and came to Corpus Christi, where Dr. Henry Redmond and family resided, reaching there about the middle of August, 1914. For reasons not necessary now to discuss she desired to go to Pennsylvania, where her mother and relatives resided. To this her husband was opposed. Finally, however, at her earnest solicitation he did agree, and she left Corpus Christi going to Pennsylvania along about the middle of September to engage in some character of work, if not as a trained nurse, closely connected with it. She says she and her husband were on the friendliest terms and he was very lover-like in his attentions. In December he was at Baltimore attending a medical college with a view of obtaining his diploma as a practitioner in the profession. She went to Baltimore and spent a few days with him and they purposed leaving there about the middle of the month. In going to the depot they seemed to have anticipated the schedule time of the train. While about the depot she says her husband disappeared. She waited until about 2 o'clock the same night and took the train to Philadelphia. That shortly afterward from New York her husband communicated with her. About the 20th of January, 1915, she came to Corpus Christi. That she had wired her husband to meet her at the train, which he failed to do. She went to the hotel and called him up next day. He did not obey her summons. This was about the 21st of January. The grand jury returned this bill of indictment on the 24th of February, 1915. Testifying in relation to the fact of desertion she says her husband deserted her at Baltimore, Md., and that the charge in the indictment that he deserted her in Corpus Christi was a mistake. That he did not do so but deserted her in Baltimore, Maryland. After she left Corpus Christi she was not in Nueces County until January 20 or 21, 1915.
Referring to the statute quoted, it will be seen that a desertion, if a desertion at all, occurred a long time before the expiration of six months, and in fact was only within thirty-five days after her arrival at Corpus Christi or upon reaching Texas. So from any viewpoint this indictment could not be sustained. He did not desert her in Texas, and if this indictment could be sustained from any standpoint, she would have to live in Nueces County six months prior to the prosecution. As the writer understands this record and the facts if such was a desertion it was on her part and not his. There is evidence to the effect that her intention when she left her husband in September may have been a permanent separation on her part. The evidence goes to show that her husband had nothing and was dependent upon his father for a support, and after they reached Corpus Christi in August until she left in September they were supported by the father, Dr. Redmond. At the time appellant did not even have his license to practice medicine. This she makes evident as does her mother-in-law, Mrs. Henry Redmond. Her return to Corpus Christi seemed based on collecting $2480 she claimed he should pay her. So from any viewpoint this indictment can not be sustained. *Page 204
There are some other questions in the case that possibly it might be well enough to notice in a general way. Application for continuance was overruled. Inasmuch as that question can not arise upon another trial as here presented, its discussion is pretermitted.
There are quite a number of bills of exception set out in the record which are not intended to be treated specifically, but in a general way Mrs. Lawrence Redmond, wife of the defendant, was the principal State's witness, and testified to such things as the State deemed of importance, and among other things she was permitted to state, over objection of appellant, that she "knocked at the door" of the residence of defendant's parents on January 21, 1915. A Mexican came to the door. She was permitted to answer this question: "What did the Mexican say to you?" Appellant was not present and knew nothing about it, and various objections were based upon this matter. In reply to the question she testified that when she knocked at the door of the residence of appellant's parents a Mexican came to the door and told her the defendant's father said she could not see him, the defendant. This testimony was clearly not admissible. It occurred between this witness and the Mexican. The Mexican's statement that appellant's father said she could not see the defendant was a matter occurring between third parties and was inadmissible unless defendant was connected with it. The court was then asked to instruct the jury to disregard and ignore the testimony, which was refused. This the court should have done. The whole matter was erroneous.
There are several questions arising out of the visit of the prosecuting witness to the residence of appellant's father, which are unnecessary to discuss inasmuch as that matter and visit and connected circumstances are not admissible. The other questions will not arise again for that reason.
There is another question asked of the witness on cross-examination: "Do you love him (meaning the defendant)? It was expected to be shown by this testimony that she did not. This was offered as a circumstance to show that the prosecuting witness actually deserted defendant instead of defendant deserting her. We think this, taken in connection with some of the other matters in the bills of exception, should have gone to the jury. It is shown elsewhere she presented to defendant in February some ten days or more before the filing of the indictment a bill for over $2400, setting out various items which she thought defendant ought to pay her. One was for $600 that she said her trousseau cost and various other matters; $60 expenses to Corpus Christi; $60 for her return trip, and $1200 "expenses one year, pending time for divorce to be entered, with expenses, attorney's fees, costs," etc., and the next bill shows that the defendant asked her on cross-examination if this bill had been paid would you have taken this matter before the grand jury? They expected for her to state in reply that if prosecuting witness had received the money called for by the bill, in the aggregate sum of $2480, she would never have instituted criminal prosecution against the defendant. We think these matters ought to have *Page 205 gone before the jury as they were germane to the question of desertion, especially in the light of the testimony of the prosecuting witness as drawn out by the State. It also tended strongly to show her return to Corpus Christi was for money rather than a renewal of her marital relations with defendant.
Another bill was to the effect that appellant wanted to prove on cross-examination that she having testified that desertion occurred in Maryland and not in Nueces County, why she did not institute the proceedings against him in Maryland. She was not permitted to answer this question. These things are all so connected up that it occurs to us that matter ought to have been investigated inasmuch as the State put these matters before the jury. The defendant had the right to break the force of them as best he could by any legitimate evidence.
Another bill shows the prosecuting witness went to Rev. Dr. Renfro, a Methodist minister at Corpus Christi, and talked with him about her troubles with her husband. She was asked on direct examination by the county attorney what did Dr. Renfro advise her to do about it. Various objections were urged that it was irrelevant, immaterial and incompetent, and would be an expression of the opinion of Dr. Renfro on this controversy, and same was hearsay and defendant was not shown to have been present at the time. All of said objections were by the court overruled, and the witness testified by stating Dr. Renfro, the Methodist minister, advised her to see an attorney about the matter, and she thereupon went to Mr. Todd. All of this was error. Objections should have been sustained. These were matters occurring between Dr. Renfro and prosecutrix about which appellant had no knowledge and was not a party to it. It was a matter occurring between third parties.
While the prosecuting witness, Olive Redmond, was testifying for the State she stated, in substance, that on account of mistreatment of her by Mrs. Henry Redmond, mother of defendant, while she, prosecuting witness, was living at the residence of defendant's parents, she, prosecutrix, left Corpus Christi and went to Philadelphia, and thereafter while Mrs. Henry Redmond was testifying for the defendant she was asked on direct examination this question: "Did you do anything to cause prosecuting witness to leave the house where she was then living with her husband, together with you and Dr. Redmond, his father?" Objection was urged to this by the State, and she was not permitted to answer the question, but she would have answered, had she been permitted, that she had not mistreated the prosecuting witness while she was living with the defendant at his parents' house, and the prosecuting witness had no reason for leaving the house of defendant's parents, where she and her husband were then staying, and without cause left said place in Corpus Christi and went to Philadelphia of her own accord. Several bills of this nature, including three with reference to letters which were written by prosecuting witness, one to Mrs. Henry Redmond and two to her daughter, Catherine Redmond, all in affectionate and endearing terms, were rejected. These letters, as *Page 206 shown, were written to them after Mrs. Henry Redmond and her daughter, Catherine Redmond, had visited the prosecutrix in Philadelphia. While there they were on amicable relations, and they had prosecuting witness out to lunch with them and showed her different sorts of courtesies and attentions. These letters were written to them after they left Philadelphia and went to New York. They are rather lengthy and unnecessary to be repeated. They discard all idea of any bad treatment on the part of either Mrs. Henry Redmond or Catherine Redmond. These become important because prosecuting witness had testified that she left the Redmonds on account of mistreatment by Mrs. Henry Redmond and Catherine Redmond. The judge seems to have had the idea that because these letters and this testimony of Mrs. Henry Redmond was cumulative of other facts, that, therefore, it was inadmissible. The reason given for its objection was one of the strongest reasons why it should have been admitted. The State had put into this record a great deal of testimony from the prosecuting witness to the effect that she left the Redmond home in Corpus Christi and went to Philadelphia because the family, Mrs. Henry Redmond and Catherine Redmond especially, were making life uncomfortable. This went before the jury. Certainly the defense had a right to meet this testimony. It seems it ought to be regarded as fundamental, independent of the statute, that where an adverse fact is put in evidence against a party, that party can meet such adverse fact with such testimony as is legitimate and which tends to destroy its weight and force. That is one of the first principles of right and justice, and it is expressly so provided by our statute. It is unnecessary to notice further these bills of exception with reference to this treatment of Mrs. Henry Redmond and Catherine Redmond as testified by prosecutrix, and the rejection of the testimony of Mrs. Redmond offered to rebut it.
There are some bills of exception with reference to the argument of counsel, which will not occur upon another trial.
There are quite a number of exceptions to the charges, special charges requested and refused. These will not be discussed in view of what has been heretofore said.
There is another question that may be well enough to notice. The "rule" was invoked and all witnesses were asked to be placed under the "rule." The court excused prosecuting witness from the rule and permitted her to remain in the courtroom by the side of her attorneys during the entire trial. She was the State's main witness, and from the bill of exceptions it appears the rule was invoked as much or more as to her than any other witness in the case. Be that as it may, she was the important witness for the State. A great deal has been written and said about the discretion of a judge in enforcing the "rule." In some cases this court has held the trial court did not abuse the discretion to the extent of requiring a reversal, but we think this case has passed the limit and boundary line. The court certainly abused this discretion in permitting this witness to remain in the courtroom. She was permitted to remain and hear all the testimony. It was upon her *Page 207 testimony that the State rested the prosecution. She was not an officer of the court, nor necessary to be present in the execution of the duties devolving upon peace officers in and around the court. She was not an attorney in the case. She was the prosecuting witness and seems to have been rather critical in her prosecution. She had the advantage of hearing all the testimony while witnesses for the defense did not. The rule must not be invoked or ought not to be and made to operate an injustice. It certainly ought to come within the well defined limits that requires each case to be kept within the boundaries of fair trial and justice. The discretion of the court was not properly exercised.
There are quite a lot of kindred questions besides those we have mentioned, but they are of the same nature. Without going further into detail we think enough has been said to indicate that if this case should ever be tried again, it must come within the rules already announced. The defendant is entitled to a fair trial, and the right to meet all opposing testimony by any legitimate explanation that is within his power, if conviction must be had after fair trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.